complaint, defendants argue that we should nonetheless grant their motion to dismiss since Doe fails to allege a constitutional violation. Doe first argues that his due process rights were violated because he "was not afforded the opportunity to seek enforcement of Defendant's OAK PARK and SMITH'S assurances of confidentiality." Plaintiff's First Amended Complaint P 12(a)(iii). Defendants' argue that Doe cannot sustain a due process challenge on this basis without attacking the truth of the information published at the August 1993 press conference. We agree.
As the Supreme Court made clear in Codd v. Velger, 429 U.S. 624, 51 L. Ed. 2d 92, 97 S. Ct. 882 (1977), in order for the due process remedy of a name-clearing hearing to be meaningful, the plaintiff must challenge the truth of the statements which have damaged him. Id. at 627-28. Indeed, "it would be fantastic to suggest that a government official could be guilty of depriving a person of liberty by occupation by disseminating truthful, vocationally relevant information about the person . . . ." Perry v. FBI, 781 F.2d 1294, 1305 (7th Cir. 1986) (Posner, J., concurring). Thus, because plaintiff fails to allege that the charges leveled against him are false, he cannot maintain an action for a deprivation of his occupational liberty. Clark v. Maurer, 824 F.2d 565, 566 (7th Cir. 1987) (dismissing complaint in part because plaintiff failed to allege the falsity of damaging statements); Primas v. City of Oklahoma City, 958 F.2d 1506, 1510-11 (10th Cir. 1992) (same).
Plaintiff seeks refuge from this problem in specific sections of cases involving occupational liberty that do not explicitly include this falsity requirement. See, e.g., Ratliff v. City of Milwaukee, 795 F.2d 612, 625 (7th Cir. 1986); Johnson, 943 F.2d at 16. However, this silence exists not because of an absence of a falsity requirement, but because this requirement is so obvious that it is rarely an issue for decision. See, e.g., Johnson, 943 F.2d at 16-17 (discussing only the public disclosure prong of test). Indeed, most cases involving a deprivation of occupational liberty simply refer to the allegation of falsity without listing it as an additional requirement to surviving a motion to dismiss. See, e.g., McMath v. City of Gary, Indiana, 976 F.2d 1026, 1032 (7th Cir. 1992); Ratliff, 795 F.2d at 626.
Plaintiff also relies on Bishop v. Wood, 426 U.S. 341, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1976), for his claim that he need not dispute the truth of the statements at issue in order to maintain a claim under the Due Process Clause. In Wood, the Court held that a police officer did not state a claim for deprivation of his occupational liberty since the reasons for his termination were given only in private or in the course of a judicial proceeding. Id. at 348-49. The petitioner tried to counter this defect by contending that these reasons were false. In answering this argument, the Court noted that the "truth or falsity of the City Manager's statements . . . neither enhances nor diminishes petitioner's claim that his constitutionally protected interest in liberty has been impaired." Id. at 349. Contrary to Doe reading, the Court's language in Wood simply means that regardless of whether the reasons given for petitioner's termination were true or false, without their publication to a broad audience there was no due process violation. Thus, Wood has no bearing on the need for Doe to challenge the truth of the charge that he failed a drug test.
In a final attempt to evade this defect in his pleading, Doe contends that all of the cases requiring the plaintiff to challenge the truth of the stigmatizing statements involve claims of defamation and denials of name-clearing hearings. Doe argues that because he sought only a pre-deprivation opportunity to enforce the confidentiality agreement, and is not alleging defamation, these cases do not apply to him. However, Doe fails to recognize that the only remedy available under the Due Process Clause for a deprivation of occupational liberty is a name-clearing hearing. Codd, 429 U.S. at 627 ("The remedy mandated by the Due Process Clause of the Fourteenth Amendment is 'an opportunity to refute the charge.'") (citation omitted); Ratliff, 795 F.2d at 627 n.4; Wright v. Glover, 778 F. Supp. 418, 424 (N.D. Ill. 1991). Furthermore, Doe's claim that he can succeed without proving defamation flies in the face of Seventh Circuit law. Clark, 824 F.2d at 566 ("The complaint does not succeed in alleging actionable defamation; a fortiori it does not allege a violation of the Constitution."). In sum, because of his failure to challenge the substantial truth of the statements concerning his positive drug test results, Doe cannot successfully base a § 1983 claim on their disclosure to the press.
In Doe's second attempt at articulating a due process violation, he argues that the Village created the false impression that he was involved in other criminal activity, such as drug dealing. Creating a false impression of criminal activity in conjunction with the termination of a public employee may state a cause of action under § 1983, since such impressions can damage one's "good name, reputation, honor or integrity, or impose a stigma that effectively forecloses" future employment. Ratliff, 795 F.2d at 625 (quoting Board of Regents v. Roth, 408 U.S. 564, 573, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972)). However, we agree with defendants that the newspaper articles cannot reasonably be construed as implicating Doe in further criminal activity.
To be sure, the two articles that ran in August 1993 indicated that the undercover investigation into the public works department was initiated because of suspected drug dealing among employees. However, these articles also explicitly stated that the investigation uncovered no illegal drug sales in the department, but only instances of "misconduct." One example of misconduct mentioned in the article was Doe's failure to pass a drug test. As discussed above, to the extend that Doe was stigmatized by these statements, he does not have a cognizable claim under § 1983. We find that no reasonable reading of these articles could lead to an impression that Doe was also suspected of other criminal activity.
The third article, which ran on September 8, 1993 in the Wednesday Journal, also referred to the undercover investigation into the department. However, the article quoted Village President Larry Christmas as saying that the Village had not been advised of any activity that could lead to an indictable offense. Further, Doe was only mentioned in the article as being terminated for testing positive for drugs and for being under the direct supervision of the former superintendent. Nowhere in the article is there any suggestion that Doe sold drugs or engaged in any illegal activity except failing his drug test. We therefore find that the article does not create the impression of criminal activity, and grant defendants' motion to dismiss Doe's § 1983 claim against the Village.
B. State Law Claims
Doe also attaches state law claims of defamation and invasion of privacy to his federal claim. Because we have eliminated the sole federal cause of action, there is little reason for keeping the state claims here. As the Supreme Court has stated:
Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.
United Mine Workers v. Gibbs, 383 U.S. 715, 726, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966); 28 U.S.C. § 1367(c)(3). We therefore exercise our discretion and dismiss the remaining counts of Doe's complaint.
For the reasons set forth above, defendants' motion to dismiss is granted. It is so ordered.
MARVIN E. ASPEN
United States District Judge